Zazzetti v. Prestige Senior Living Ctr. LLC

• Decision Date: 31 March 2022
• Docket Number: 20200357-CA
• Citation: 509 P.3d 776
• Parties: Peggy ZAZZETTI, Appellant, v. PRESTIGE SENIOR LIVING CENTER LLC and Action Snow Plow and Lawn Care Inc., Appellees.
• Court: Utah Court of Appeals

509 P.3d 776

Peggy ZAZZETTI, Appellant,

v.PRESTIGE SENIOR LIVING CENTER LLC and Action Snow Plow and Lawn Care Inc., Appellees.

No. 20200357-CA

Court of Appeals of Utah.

Filed March 31, 2022

Daniel F. Bertch, Draper, Salt Lake County, and Caleb Bertch, Attorneys for Appellant

Jeremy S. Stuart and Nathanael J. Mitchell, Salt Lake City, Attorneys for Appellee Prestige Senior Living Center LLC

Joseph E. Minnock, Salt Lake City, Attorney for Appellee Action Snow Plow and Lawn Care Inc.

Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

Opinion

HARRIS, Judge:

¶1 Peggy Zazzetti was injured after she slipped and fell on a patch of ice at her apartment complex. She sued the owner of the complex as well as a snow removal company the owner had hired. Prior to trial, pursuant to a summary judgment motion, the trial court dismissed the snow removal company from the lawsuit. And after a three-day trial, a jury found that the owner was not at fault for Zazzetti's injuries. Zazzetti now appeals, asserting that the court should not have dismissed the snow removal company from the lawsuit, and that the jury's verdict was the result of various errors on the part of the court. We affirm.

BACKGROUND

¶2 In 2013, Zazzetti moved into an apartment at the Prestige Senior Living Center (Prestige). Zazzetti selected Prestige, as opposed to other housing options, because Zazzetti was disabled and Prestige billed itself as a "Low Income Housing Tax Credit Project" in which only people "62 and older or disabled" were allowed to live. Zazzetti and Prestige signed an apartment rental agreement—a form document drafted by Prestige—that, among other provisions, contained this language: "Tenant ... agrees to keep snow off stairs and walks in the winter." In this opinion, we refer to this language as "the Snow Removal Provision."

¶3 In January 2017, Zazzetti walked her boyfriend to his car following a visit and, after he drove away, as she was returning to her apartment, she slipped and fell on the snowy and icy sidewalk leading from the parking lot to the building. The fall caused an injury to her left knee that later required surgery.

¶4 Zazzetti subsequently sued Prestige, asserting claims of negligence, breach of the implied warranty of habitability, and breach of contract. In its answer, Prestige denied all liability and gave notice that "it intend[ed] to apportion fault" to Action Snow Plow and Lawn Care (Action), a company it had hired to remove snow at the apartment complex. In response, Zazzetti amended her complaint, this time including claims against Action that were identical to the claims she had asserted against Prestige.

¶5 Later, after discovery, Prestige and Action both filed motions for summary judgment. In its motion, Prestige argued, in part, that it had satisfied its duty to Zazzetti and that Zazzetti's own failure to comply with the Snow Removal Provision had contributed to her injuries. For its part, Action argued, among other things, that it was "an independent contractor who owe[d] no direct duty" to Zazzetti. The trial court denied Prestige's motion for summary judgment, but granted Action's, dismissing it as a party from the case.

¶6 Zazzetti then filed a motion asking the court to forbid Prestige from making any reference to the Snow Removal Provision during trial, arguing that the provision was unconscionable and irrelevant. Prestige resisted the motion, apparently wanting to keep the door open to arguing, at trial, that the accident was at least partially Zazzetti's fault due to her failure to comply with the Snow Removal Provision. The court denied the motion, expressing doubt that the doctrine of unconscionability could even apply where Prestige was not seeking to enforce the Snow Removal Provision, but concluding in any event that the provision was not unconscionable. On that basis, the court declined Zazzetti's invitation to forbid Prestige from referring to the Snow Removal Provision at trial, although it stated that the provision could not "alter [Prestige's] duties" under principles of premises liability and that it would, if necessary, so instruct the jury.

¶7 Later, just days before trial, the court asked Prestige at the final pretrial conference to clarify its position regarding the Snow Removal Provision. In response, Prestige acknowledged a "possibility" that it would, during trial, "point out" the Snow Removal Provision, but stated that its position at trial was "not going to be that [it] didn't do any snow removal efforts because [it was] anticipating that [Zazzetti] was going to do it herself," and that it was "not going to argue that this is [Zazzetti's] fault because it was her responsibility to get out there and shovel and salt herself." Indeed, Prestige conceded that the Snow Removal Provision did not "change[ ] the non-delegable duty" that it owed to Zazzetti, and stated that it would not argue otherwise at trial.

¶8 The parties also submitted proposed jury instructions prior to trial. Among Zazzetti's requested instructions was one entitled "Duty of landlord," which stated that Zazzetti "must prove that ... [Prestige] failed to use reasonable care to keep the rented property ... safe and suitable for its intended use; or ... free of defects or dangerous conditions of which [Prestige] knew or should have known would expose others to an unreasonable risk of harm." Prestige did not oppose the "Duty of landlord" instruction. But it asked the court to provide an additional instruction on the topic, this one captioned "Open and obvious danger rule," which stated that "[a] landlord is not liable to its tenants for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the landlord should anticipate the harm despite such knowledge or obviousness." At the final pretrial conference, the court acknowledged the parties’ respective jury instruction requests, but indicated that it would entertain argument about them during the course of the trial.

¶9 The case proceeded to a three-day jury trial. During his opening statement, Zazzetti's counsel introduced the Snow Removal Provision, stating that "if you think [including that language in the rental agreement was] not fair, and that's not right, and that is not fulfilling the duty that a landlord has toward vulnerable tenants, then your verdict should be for [Zazzetti]." Zazzetti then called various witnesses, including her husband (her boyfriend at the time of the incident) and her brother, who both testified that the walkways at the apartment complex were rarely plowed or shoveled, and that they were frequently icy. And Zazzetti herself testified that, on the day of her fall, the walkways were icy, and that in the days leading up to the fall she had not seen anyone shoveling or spreading ice melt on the walkways. A representative of Action, however, testified that Action had indeed plowed and shoveled several times in the days leading up to the incident, including twice on the day of the accident itself, and pointed to handwritten plow logs to support that assertion. The manager of the apartment complex (an employee of Prestige) also testified that she had remotely—via video camera—observed Action plowing and shoveling in the days leading up to the incident, that Prestige would not have paid Action if it had not actually fulfilled its plowing and shoveling duties, and that—despite the language of the Snow Removal Provision—Prestige did not expect its tenants to do their own snow removal.

¶10 Following the manager's testimony, Zazzetti moved for a mistrial, asserting that Prestige's "flip flop" on whether it intended to argue that tenants had a duty to remove snow pursuant to the Snow Removal Provision had "prejudice[d] the way that the trial ha[d] unfolded." In particular, Zazzetti's counsel implied that he would not have discussed the Snow Removal Provision during his opening statement had he known, in advance, that Prestige did not intend to argue that tenants had a duty to remove snow, and stated that he had been "baited into making a big deal out of language in the lease that now we're all agreeing" had no bearing on the duty question. In response, Prestige stated that it had "not put the [Snow Removal Provision] in front of the jury a single time in this trial," and that it "was never going to show up and say that the duty was entirely on or even partially on the tenants." The trial court denied the motion for a mistrial, specifically recalling that, at the final pretrial conference, Prestige had indicated that it was not going to use the Snow Removal Provision to argue that tenants were responsible for removing the snow, and concluding that, under these circumstances, Zazzetti's choice to introduce the provision to the jury during opening statement had been hers alone.

¶11 At the conclusion of the trial's first day, the court invited argument regarding the parties’ proposed jury instructions. Zazzetti argued that Prestige's requested "Open and obvious danger rule" instruction was inappropriate. Specifically, Zazzetti asserted that the open and obvious danger rule was inconsistent with the general duty of care owed by a landlord to its tenants, and that, while the doctrine may still have significance in certain contexts, it does not apply in the landlord-tenant context. In response, Prestige argued that the open and obvious danger rule was "still good law" and that it applies in situations involving landlords and tenants, at least in cases where the accident occurs in a common area, like a walkway or a parking lot. The court took the matter under advisement, and the next day announced that it would give Prestige's requested instruction regarding the open and obvious danger rule, in addition to Zazzetti's requested instruction regarding the general duty of a landlord.

¶12 At the close of the evidence, Prestige moved for a directed...